CONNECTICUT
LAW REVIEW
VOLUME 43
MAY 2011
NUMBER 4
Article
The Senate: Out of Order?
AARON-ANDREW P. BRUHL
Due to the routine use of the filibuster and related devices, today’s
Senate operates as a supermajoritarian body. This Symposium Article
considers whether this supermajoritarian aspect of the Senate renders it
dysfunctional and, if so, what can be done about it. I contend that the
Senate is indeed broken. Its current supermajoritarian features have
pernicious effects. Further, and contrary to the claims of many of the
Senate’s defenders, this aspect of the Senate is not part of the original
design. I go on to explain why the Senate’s procedures, despite their
deficiencies, have nonetheless proven resistant to reform. The impediment
to change is not based in law but instead derives largely from legislators’
incentives. I close by discussing whether and how those incentives could
be altered.
1041
ARTICLE CONTENTS
I. INTRODUCTION ................................................................................. 1043
II. EVALUATING THE SUPERMAJORITARIAN
SENATE ............................................................................................. 1043
A. THE STATE OF THE SENATE .............................................................. 1043
B. IS THE SENATE BROKEN? .................................................................. 1046
III. IMPEDIMENTS TO FIXING THE SENATE .................................... 1053
IV. CONCLUSION AND PROSPECTS
FOR FUTURE REFORM ................................................................... 1057
The Senate: Out of Order?
AARON-ANDREW P. BRUHL*
I. INTRODUCTION
The subject of the Connecticut Law Review’s 2010 Symposium is
whether our constitutional system is broken. My contribution to the
Symposium concerns whether the Senate in particular is broken and, if so,
whether it can be fixed. Needless to say, that is a large and complicated
topic, so I will focus on just a few aspects of it. In particular, I will focus
on the filibuster, the parliamentary device that lets a minority of the Senate
prevent action on items the Senate majority would like to enact. As I will
explain, filibusters have become a routine part of the legislative process,
such that the Senate has become, practically speaking, a supermajoritarian
institution.
The discussion proceeds in two parts. Part II assesses the Senate’s
current condition from two different perspectives, one essentially
originalist and the other more pragmatic. I contend that the Senate is not
functioning well according to either standard. Part III then considers some
factors, mostly political, that tend to make the Senate resistant to
substantial reform. I conclude with a brief discussion of ways to improve
the prospects for future reform.
II. EVALUATING THE SUPERMAJORITARIAN SENATE
A. The State of the Senate
I begin with some facts about the contemporary Senate, with particular
emphasis on the recently concluded 111th Congress, which ran from
January 2009 to January 2011.
Our system of government is not designed to ease the path of
legislation. We have not just a bicameral legislature—both the House of
Representatives and the Senate have to pass the same bill—but the
President has to assent as well, giving us effectively a tricameral legislative
* Assistant Professor, University of Houston Law Center. This is an expanded version of my
remarks from the Connecticut Law Review’s October 2010 Symposium on the topic “Is Our
Constitutional Order Broken?” I thank the editors for inviting me to participate in the Symposium. I
thank Josh Chafetz, Michael Teter, and Seth Barrett Tillman for helpful comments on a prior draft.
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1
process. Even so, the 111th Congress opened with the stars aligned for
dramatic action, with the Democrats in control (or at least seemingly in
control) of all three bodies. Barack Obama had just won the presidential
election convincingly. The Democrats had a significant majority in the
House, and their margin in the Senate was larger than we have seen in
recent times.2 The Democrats did not, however, have sixty votes in the
Senate when the Congress opened, and they would have that magic number
for less than half of the two-year congressional term.3 The sixty-vote
threshold is important, of course, because that is the number Senate Rule
XXII ordinarily requires in order to invoke “cloture”—that is, to end
debate and bring a measure to a vote.4 In the contemporary Senate, having
sixty votes makes the difference between being in the majority and being
in control.
The lack of a large enough majority in the Senate proved critical.
Hundreds of bills were passed by the House but then languished or failed
in the Senate.5 Some of these bills made the headlines. Prominent recent
examples include legislation requiring greater disclosure of election
expenditures (a reaction to the Supreme Court’s Citizens United v. Federal
Election Commission decision6) and the immigration-related DREAM
Act.7 Also widely noted have been a few stalled or failed nominations.8
Most of the bills and nominations that floundered or foundered in the
Senate, however, were not nearly as high profile. Indeed, many of them
were not even particularly controversial, which in some ways makes the
difficulty in securing approval all the more remarkable. In one notable
episode, a Senator held up dozens of presidential appointments not because
1
See U.S. CONST. art. I, § 7, cl. 2 (setting forth the constitutional requirements of bicameral
passage and presentment to the President). The President’s veto can of course be overridden, but only
by an extraordinary two-thirds vote of each chamber. Id.
2
See Perry Bacon, Jr., Democrats Win 18 More House Seats, WASH. POST, Nov. 6, 2008, at A41
(noting that Democrats’ election gains gave them the largest House majority in over a decade); Paul
Kane, For 111th Congress, Somber Topics Eclipse Ceremony, WASH. POST, Jan. 7, 2009, at A05
(noting the unusually large Democratic majorities in both chambers).
3
See Carl Hulse & Jeff Zeleny, Death of Byrd Weakens Democrats’ Frail Majority, N.Y. TIMES,
June 29, 2010, at A21 (noting that Democrats gained a sixty-vote supermajority with the seating of Sen.
Al Franken in July 2009 and lost it with the election of Sen. Scott Brown in January 2010).
4
See STANDING RULES OF THE SENATE, S. DOC. NO. 110-9, at 15–16 (2007) (Rule XXII.2).
More precisely, the rule specifies a three-fifths vote of those duly chosen and sworn, which is often but
not always sixty. Id.
5
George Packer, The Empty Chamber: Just How Broken Is the Senate?, NEW YORKER, Aug. 9,
2010, at 38, 47; see also 372 Bills That Have Been Passed by the House and Not Yet Acted upon by the
Senate (As of 8/23/10), THE HILL, http://thehill.com/homenews/senate/83057-290-bills (listing bills).
6
130 S. Ct. 876 (2010); see also Dan Eggen, Bill on Political Ad Disclosures Falls Short in
Senate, WASH. POST, July 28, 2010, at A3 (discussing how “Democrats fell just shy of the 60 notes
needed to avoid a GOP filibuster”).
7
Lisa Mascaro & James Oliphant, DREAM Act Was Key to Bigger Plan, L.A. TIMES, Dec. 19,
2010, at A27.
8
See, e.g., Charlie Savage, Long After Nomination, an Obama Choice Withdraws, N.Y. TIMES,
Apr. 10, 2010, at A16 (reporting on the failed nomination of Dawn Johnsen to lead the Office of Legal
Counsel).
2011]
THE SENATE: OUT OF ORDER?
1045
of any objection to the particular nominees but because of a disagreement
over two administration decisions affecting federal spending in his state.9
(A single Senator cannot defeat a motion for cloture, but he or she can
delay action through a device known as a hold. A hold is essentially a
threat to filibuster, which would eat up valuable legislative time while the
majority goes through the process for invoking cloture.10)
Now, I recognize that a claim that the Senate has gridlocked the
political system might seem strange, in light of the fact that the 111th
Congress saw the passage of one initiative of potentially historic
proportions—the healthcare reform law11—and a few other very important
statutes, notably including the early 2009 stimulus package12 and the more
recent financial reform law,13 not to mention the confirmation of Supreme
Court Justices Elena Kagan and Sonia Sotomayor. This was not a “do
nothing” Congress.
Yet even when it came to the measures that passed, the
supermajoritarian Senate still took its toll.14 The bills just mentioned
barely survived despite the Democrats’ numerical strength, and they did so
only in a highly compromised (some might say disfigured) form that was
practically dictated by the Senate alone, with the House having little choice
but to accept whatever the Senate would give it.15 The healthcare law was
profoundly influenced by the need to secure sixty votes.16 The stimulus
bill took the shape it did based largely on the need to satisfy Susan Collins,
9
See Kate Phillips & Jeff Zeleny, Roadblock in the Senate, N.Y. TIMES, Feb. 6, 2010, at A11
(describing holds placed by Republican Sen. Richard Shelby); see also John Broder, A Nominee Held
Hostage, N.Y. TIMES, Sept. 24, 2010, at A19 (discussing Democratic Sen. Mary Landrieu’s hold on a
presidential nominee as a protest over the administration’s moratorium on oil drilling).
10
The Senate cannot vote to invoke cloture until two calendar days after a cloture petition is filed,
and another thirty hours of debate are permitted even after cloture is successfully invoked. STANDING
RULES OF THE SENATE, supra note 4, at 15 (Rule XXII.2). Thus even a single Senator has substantial
leverage.
11
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010),
amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat.
1029.
12
American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115.
13
Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat.
1376 (2010).
14
Sometimes particular Senators exact a toll quite literally in the sense that they require special
deals in order to win their support. See infra text accompanying note 43.
15
See Joseph J. Schatz, House Stymied by Senate Rules, CQ WKLY., Apr. 19, 2010, at 960,
available at http://library.cqpress.com/cqweekly/document.php?id=weeklyreport111-000003643079&
type=hitlist&num=0& (reporting that the rise of the filibuster and sixty-vote threshold has strengthened
the Senate’s hand in negotiations with the House).
16
See, e.g., Shailagh Murray & Lori Montgomery, Prospects for Public Option Dim in Senate,
WASH. POST, Sept. 30, 2009, at A1 (quoting Sen. Max Baucus (D-Mont.) as follows: “No one has been
able to show me how we can count up to 60 votes with a public option . . . . I want a bill that can
become law.”). It is difficult to say whether the healthcare reform law would have included a public
option if not for the filibuster. Such assessments are almost impossible to make with confidence
because the need to secure sixty votes shapes the bill and legislators’ behavior at every step. Moreover,
Senators can act strategically in their public comments regarding how they will vote.
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[Vol. 43:1041
a minority-party Senator from the lovely but sparsely populated state of
Maine.17 What made her crucial was her ability to deliver the pivotal
sixtieth vote.18
In sum, although our legislative process features several points at
which a bill can fail, it is fair to say that the most important of these during
the 111th Congress was the Senate. To be sure, there is some contingency
involved here, such that the Senate will not always be the critical actor. In
particular, the magnitude of the obstacle posed by various entities depends
on the partisan alignment of the branches. In the 112th Congress, in which
Republicans control the House of Representatives, the Senate should be
less critical as a veto point because the other players are already divided.
Nonetheless, the powerful Senate of the 111th Congress was not especially
unusual, for the Senate—with its ever more automatic sixty-vote
requirement—has increasingly become the highest hurdle that legislation
must clear.19
B. Is the Senate Broken?
So that is the situation. Now for the diagnosis. That is, is the Senate
broken? Or is everything working as it should?
There are a number of ways in which the Senate might conceivably be
broken. Two of these we can lay aside at the outset without extended
discussion. The first possible dysfunction is simply that the Senate is part
of a bicameral rather than unicameral legislature.20 The second is that
every state has equal representation in the Senate.21
I will ignore those features of the Senate, but not because they are
unimportant or uncontroversial. Although bicameralism has much to
recommend it and has been widely though not universally adopted, it has
its drawbacks as well.22 And the Senate’s malapportionment with regard to
17
See Greg Hitt, GOP Wields More Influence Over the Stimulus Bill, WALL ST. J., Feb. 5, 2009,
at A3; Carl Hulse, No Ordinary Republicans: Maine Senators Break with Party on Fiscal Plan, N.Y.
TIMES, Feb. 11, 2009, at A20; Paul Kane, Key GOP Senator in Stimulus Deal Is Known for Centrist
Approach, WASH. POST, Feb. 12, 2009, at A08.
18
More precisely, there were three moderate Republicans whom the Obama administration was
courting—Susan Collins, Olympia Snowe, and Arlen Specter (before his party switch)—and Collins
took the lead as the negotiator for this pivotal group. See Kane, supra note 17, at A08 (describing
Collins as “the focus of White House attention” and a “central player”).
19
See Barbara Sinclair, The New World of U.S. Senators, in CONGRESS RECONSIDERED 1, 17–18
(Lawrence C. Dodd & Bruce I. Oppenheimer eds., 9th ed. 2009) (showing that the number of bills
passed by the House but not the Senate has increased in several recent Congresses and linking this
development to the filibuster).
20
U.S. CONST. art. I, §§ 1, 7.
21
Id. § 3, cl. 1.
22
The merit of bicameralism is, unsurprisingly, the subject of a large literature. For rather
different approaches to the question, with citations to further work, see SANFORD LEVINSON, OUR
UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE
PEOPLE CAN CORRECT IT) 29–38 (2006); and Abhinay Muthoo & Kenneth A. Shepsle, The
2011]
THE SENATE: OUT OF ORDER?
1047
population—which makes citizens of Wyoming seventy times more
influential than citizens of California23—is both highly consequential and
quite hard to justify today.24 The reason I ignore these features is that I
regard them as givens, items that are not likely to be altered. They are not
just provided for in the Constitution, which is extremely difficult to amend,
but the Constitution goes even further by purporting to entrench the
Senate’s basic structure against amendment.25 Moreover, even without any
actual legal impediment to such changes, it is hard to imagine the political
circumstances in which the states that benefit from the Senate and its
apportionment could be persuaded, or forced, to abandon it.
Having set aside bicameralism and equal representation, I will instead
discuss the supermajoritarian character of the Senate, which is relatively
more up for grabs both legally and practically. Thus reframed and
narrowed, the question for discussion is whether the Senate’s
supermajoritarian character renders it defective. In referring to the
Senate’s supermajoritarian character, I mean primarily the filibuster as
practiced today—that is, the virtually automatic rule that every measure
that can be filibustered has to achieve sixty votes to pass.26 Also relevant
are related practices like holds, which are essentially threats to filibuster.27
It seems to me that we can approach the question in at least two ways,
one (broadly speaking) originalist and the other pragmatic.
1. Evaluation from Originalist Premises
By an originalist evaluation, I mean to ask whether the Senate is
functioning as it was intended or contemplated to operate. One has to be
careful in making such inquiries, of course, as they naturally involve a
number of difficulties—contemplated by whom, how do we know, etc.
Constitutional Choice of Bicameralism, in INSTITUTIONS AND ECONOMIC PERFORMANCE 249 (Elhanan
Helpman ed., 2008).
23
See U.S. CENSUS BUREAU, STATE AND METROPOLITAN AREA DATA BOOK: 2010, at 3 tbl.A-1
(7th ed. 2010), available at http://www.census.gov/prod/2010pubs/10smadb/2010smadb.pdf (listing
California’s 2008 population at almost 37,000,000 and Wyoming’s at about 500,000).
24
See FRANCES E. LEE & BRUCE I. OPPENHEIMER, SIZING UP THE SENATE: THE UNEQUAL
CONSEQUENCES OF EQUAL REPRESENTATION 10–11, 189–94, 223–30 (1999) (providing an in-depth
examination of how the Senate’s structure advantages small states); LEVINSON, supra note 22, at 49–62
(condemning the Senate’s malapportionment); cf. Reynolds v. Sims, 377 U.S. 533, 566, 568, 576
(1964) (requiring that state legislative districts be apportioned on a one-person, one-vote basis).
25
See U.S. CONST. art. V (barring amendments that would deprive a state of its equal
representation in the Senate without its consent). The literal text of this provision forbids only changes
to the Senate’s apportionment. One could posit a number of creative ways of circumventing the
restriction, such as by sidelining the Senate altogether. See AKHIL REED AMAR, AMERICA’S
CONSTITUTION: A BIOGRAPHY 292–95 (2005). Beyond that, one could question whether Article V has
to be regarded as the sole method of amending the Constitution. See id. at 295–99.
26
There are certain categories of legislation, notably including some trade agreements and aspects
of the federal budget, that are not subject to filibuster. See, e.g., SARAH A. BINDER & STEVEN S.
SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE UNITED STATES SENATE 185–94 (1997) (listing
a number of examples).
27
See supra text accompanying note 10.
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Nonetheless, in this case it is possible to provide an answer that is quite
strong as these things go. That answer is no: the Senate is not functioning
the way it was meant to work.
Now, it is true—and yet also a source of great confusion and
misunderstanding—that the Senate was meant to be, among other things, a
check on the House and a break on overhasty or hyperactive lawmaking. 28
Defenders of the status quo constantly invoke this aspect of the Senate’s
design. Frequently they recount the story in which George Washington is
supposed to have compared the Senate to a cooling saucer.29 Though
probably apocryphal,30 the story is close enough to the mark that it seems
like it could be true. Yet the notion that the Framers intended the Senate to
fulfill its checking function by itself being supermajoritarian is fiction: the
desired security against imprudent impulse, Madison tells us, would come
from a lawmaking process that required the assent of multiple,
independently selected and constituted majorities in the House and Senate,
not supermajority voting rules within the chambers.31 The Framers were
mostly hostile to minority vetoes in the everyday lawmaking process;
supermajority requirements, Hamilton reminds us, had been one of the
failings of the Articles of Confederation.32 The Framers certainly
understood that supermajority voting rules have some virtues when it
comes to blocking unwise laws, but they also understood the serious
countervailing disadvantages of minority rule.33 As Madison put it,
28
E.g., THE FEDERALIST NO. 62, at 378 (probably James Madison) (Clinton Rossiter ed., 1961)
(defending the Senate in part because it will restrain “the facility and excess of law-making [that] seem
to be the diseases to which our governments are most liable”); 1 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 218–19 (Max Farrand ed., 1966) [hereinafter RECORDS] (reporting that
Madison and Randolph favored long senatorial terms to promote stability and bolster the Senate’s
ability to resist the House); id. at 512 (reporting Morris’s statement that the purpose of the Senate is to
“check the precipitation, changeableness, and excesses” of the House).
29
E.g., Brian Darling, Bid To ‘Reform’ Filibuster Is Dangerous, WASH. TIMES, Jan. 6, 2011, at
A2; Dispute in the Senate: Excerpts from Remarks on Filibusters, N.Y. TIMES, May 19, 2005, at A25
(quoting Sen. Harry Reid, who was minority leader at the time); Why We Need the Filibuster, CHI.
TRIB., May 27, 2003, at C18.
30
See Senatorial Saucer, MONTICELLO.ORG, http://www.monticello.org:8081/site/research-andcollections/senatorial-saucer (last visited Apr. 4, 2011) (pointing out that “no evidence has surfaced”
that Washington actually remarked on the similarity of the Senate to a saucer).
31
THE FEDERALIST NO. 62, supra note 28, at 378 (probably James Madison) (stating that “[an]
additional impediment . . . against improper acts of legislation” is that “[n]o law or resolution can now
be passed without the concurrence, first, of a majority of the people, and then, of a majority of the
States” (emphasis added)).
32
THE FEDERALIST NO. 22, supra note 28, at 147–48 (Alexander Hamilton). When the
Convention rejected a proposal to require a two-thirds supermajority for Congress to regulate
navigation, some of the delegates cited the unhappy experience under the Articles of Confederation as
evidence against such a rule. 2 RECORDS, supra note 28, at 449–53.
33
THE FEDERALIST NO. 58, supra note 28, at 361 (James Madison) (“That some advantages
might have resulted from such a precaution [i.e., supermajority voting] cannot be denied. It might have
been an additional shield to some particular interests, and another obstacle generally to hasty and
partial measures. But these considerations are outweighed by the inconveniences in the opposite
scale.”).
2011]
THE SENATE: OUT OF ORDER?
1049
34
majority voting is “the fundamental principle of free government.” John
Locke would have agreed.35
The Senate’s early history does not support supermajority rule either.
A great deal has been written on this topic (a bit of it by me in prior
work),36 but for present purposes this summary from two of the leading
scholars of the filibuster will suffice: “[In the Senate’s first decades],
[S]enators seemed to assume that final votes—even on contentious
legislation—would be taken as a matter of course . . . . Furthermore,
Senators assumed that approval of legislation would require no more than a
simple majority vote.”37 In other words, the “sixty-vote Senate”38 is not of
ancient origin.
I have been claiming that the Senate is broken according to originalist
premises in the sense that it is not functioning as intended. If that is
correct, that would count as one reason in favor of reform. It would
require somewhat more to show that the Senate’s current practices,
particularly the routine filibuster, are so inconsistent with the original
understanding as to be actually unconstitutional. Nonetheless, although
demonstrating unconstitutionality is not necessary in order to establish
dysfunction and argue for reform, the filibuster as now practiced is
probably unconstitutional. At a bare minimum, the Constitution certainly
assumes that the Senate would operate under majority rule. Such is
evident from the provision allowing the Vice President to break a tie.39
Similarly, the fact that presidential vetoes can be overridden only by a twothirds vote40 shows that something less was anticipated for initial passage.
Moreover, the Constitution itself specifies supermajority rule for several
particularly momentous actions such as advancing a constitutional
amendment, expelling a member, convicting on impeachment charges, and
ratifying a treaty.41 Add the Framers’ hostility to minority vetoes and this
is probably enough to push majority rule within a legislative chamber over
the line from constitutional expectation to constitutional requirement.42
34
Id.
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 52 (C.B. Macpherson ed., Hackett
Publishing Co. 1980) (1690) (“[T]he act of the majority [of an assembly] passes for the act of the
whole, and of course determines, as having, by the law of nature and reason, the power of the whole.”).
36
See, e.g., BINDER & SMITH, supra note 26, at 29–51; GREGORY KOGER, FILIBUSTERING: A
POLITICAL HISTORY OF OBSTRUCTION IN THE HOUSE AND SENATE 37–95 (2010); Aaron-Andrew P.
Bruhl, Burying the “Continuing Body” Theory of the Senate, 95 IOWA L. REV. 1401, 1410–18 (2010);
Josh Chafetz, The Unconstitutionality of the Filibuster, 43 CONN. L. REV. 1003, 1011–16 (2011).
37
BINDER & SMITH, supra note 26, at 50–51.
38
Barbara Sinclair, The “60-Vote Senate”: Strategies, Process, and Outcomes, in U.S. SENATE
EXCEPTIONALISM 241, 241–46 (Bruce I. Oppenheimer ed., 2002).
39
U.S. CONST. art. I, § 3, cl. 4.
40
Id. § 7, cl. 2.
41
Id. § 3, cl. 6 (conviction in impeachment trial); id. § 5, cl. 2 (expulsion); id. art. II, § 2, cl. 2
(treaties); id. art. V (amendments).
42
Needless to say, the brief comments in the text hardly do justice to the constitutional debate.
As I have acknowledged in prior work, the constitutionality of the filibuster (and the rules that protect it
35
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2. Evaluation from Pragmatic Premises
So that is originalism. Turning to more pragmatic considerations of
policy consequences, the Senate is broken on this score as well. Now, to
be sure, one’s assessment here is strongly influenced by the politics of the
moment and one’s substantive view of the merits of the particular
legislation on the agenda. Democrats like obstruction just fine when they
are blocking Republican measures; Republicans like it when they can
block Democratic measures. Obviously we need to avoid that kind of
reasoning when making a more principled assessment.
Beyond the immediate party dynamics, one’s assessment of the
filibuster might reflect a less directly partisan but still partly ideological
stance concerning the general question of how easy it should be to
legislate. Again, our system is not designed to facilitate speedy
lawmaking; the structure does not provide for a plebiscitary democracy in
which present public desires are instantly transformed into public policy.
The question here, however, is one of degree. If one wants legislating to
be more difficult—not just for certain laws or parties but across the board
as a principled matter—then it might seem that adding hurdles like the
filibuster would be desirable. Such a sentiment might stem from a certain
type of libertarian outlook according to which legislation is presumptively
bad because it almost necessarily interferes with liberty, private property,
and free markets. (A compatible but distinct position, influenced by public
choice theory, sees legislation as presumptively bad because it generally
reflects special-interest deals rather than advancing the public interest.)
Now, it may be that reformers simply have to concede that reining in
the filibuster, even as a longer-term proposition that abstracts from current
partisan aims, is not a win-win proposition that everyone could get behind
regardless of their ideology. Nonetheless, I believe that there should be
rather few people who, upon reflection, actually have an interest in
from repeal) is a complicated question with many argumentative thrusts and parries but no knockout
punches. See Bruhl, supra note 36, at 1419–27 (summarizing the arguments). For further elaboration
of the argument that the contemporary filibuster rule is unconstitutional to the extent it cannot be
changed by a majority, see Josh Chafetz’s contribution to this symposium, supra note 36, and
Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 245–52 (1997). For a
contrary view, see Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 CONST. COMMENT.
445, 450–62 (2004). Note that the argument for unconstitutionality does not rely on a simplistic appeal
to democracy. First, democracy is a highly complicated and contested concept. Second, our
Constitution is not straightforwardly democratic in the majority-rule sense. Third, to the extent that
democracy ordinarily requires that popular majorities rule, popular majorities need not line up with
Senate majorities. That is, because of the Senate’s malapportionment with respect to population, a
filibustering minority could represent many more people than the Senate majority. This last fact might
tempt one to mount a democratic case for the filibuster. Nonetheless, it seems to me that a party that is
strong enough to hold the presidency, the majority in the House, and the majority in the Senate has
sufficiently proven its democratic pedigree that it should be permitted to govern. Public opinion acts as
a check as well. Thus, we do not need the filibuster to prevent minority rule by an unrepresentative
Senate majority.
2011]
THE SENATE: OUT OF ORDER?
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retaining the filibuster.
To begin with, to the extent the filibuster is thought to be valuable
because it simply makes it harder to legislate and thus tends to entrench the
status quo, the status quo is not the libertarian common-law baseline. The
status quo includes, among other things, government-run retirement
financing (i.e., Social Security), Medicare, corporate income taxes, the war
on drugs, agricultural subsidies, and, perhaps most immediately relevant,
the recent healthcare reform act. The filibuster makes it harder to repeal
these programs, cut taxes, and accomplish the rest of a libertarian agenda,
just as it makes it harder to create new programs. Put differently, maybe
obstruction can keep the government off your back, but obstruction will
not get it off your back once it is there.
Further, and contrary to the assumption in the previous paragraph, it is
not necessarily the case that the effect of the filibuster is to block
legislative action. Sometimes the filibuster simply makes legislation more
costly in the quite literal sense that the way to get the support of the last
few necessary Senators (who are increasingly distant from a bill’s
supporters) is not through persuasion or compromise on the merits but
through the addition of special benefits desired by the pivotal Senators’
constituents and contributors.43 Here the healthcare reform act, with its
“Cornhusker kickback” and “Louisiana Purchase,” is distinctive only
because the deal-making was more visible.44
Libertarians and
conservatives should be particularly averse to any parliamentary device
that encourages such pork-barreling.
Still further, it seems that just about everyone, regardless of ideology,
has an interest in maintaining electoral accountability. Elections should
have consequences. Whether the majority supports socialism on the one
hand or social Darwinism on the other, today the minority can block the
majority’s legislative program or at least shape it to the minority’s liking,
even under conditions of unified government. Who, then, should the
public blame when the party that appears to be in power disappoints?
43
See Elizabeth Garrett, A Fiscal Constitution with Supermajority Voting Rules, 40 WM. & MARY
L. REV. 471, 486–87 (1999) (observing that “supermajority voting requirements may increase the
amount of special interest legislation as lawmakers work to assemble larger coalitions”). The same
point applies to veto points more generally, including bicameralism. Suppose the House wishes to
spend money on Project A and the Senate wishes to spend money on Project B. One outcome is that
both measures fail, but another is that bicameral logrolling lets both succeed. Cf. 1 RECORDS, supra
note 28, at 486 (reporting Madison’s remark that small states could use their voting power in the Senate
to “extort” measures, not just “obstruct” them). For an examination of the complex dynamics of
bicameralism and spending, see Kenneth A. Shepsle, Dysfunctional Congress?, 89 B.U. L. REV. 371,
378–79 (2009).
44
See Chris Frates, Payoffs for States Seal Senate Deal, POLITICO.COM (Dec. 19, 2009, 7:56 PM),
http://www.politico.com/news/stories/1209/30815.html (discussing special deals used to secure the
votes of wavering Senators); see generally DIANA EVANS, GREASING THE WHEELS: USING PORK
BARREL PROJECTS TO BUILD MAJORITY COALITIONS IN CONGRESS (2004) (discussing the role of
particularized benefits in forging legislative coalitions).
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True, we will never have the kind of responsible party government found
in a parliamentary system.45 After all, ours is not a parliamentary system;
it is a presidential system that can and frequently does experience divided
government—factors that tend to blur the lines of accountability for policy
outcomes. Some degree of accountability is required, however, and the
current state of affairs is not conducive to it. The problem, as Jack Balkin
has astutely observed, is that we now seem to be experiencing an unstable
combination of presidential structure and parliamentary behavior.46 That
is, the opposition party (the Republican Party in the 111th Congress) unites
for the purpose of bringing down the government through constant
opposition,47 yet the majority party lacks the power to enact—and be
judged upon—its own preferred program even when it nominally controls
all the legislative organs. If the stimulus fails, who is the responsible
party? President Obama and the Democrats . . . or Senator Collins?
Finally, legislative dysfunction creates the risk that the action simply
moves elsewhere. Decisions must be made, and action must be taken,
especially as circumstances change and new problems arise. The political
system is like a hydraulic system: shut off a valve here and the pressure
will exert itself through other channels.48 The policy choices will be made,
just not through our elected legislators acting through the constitutionally
envisioned channels. A broken legislative process means a greater role for
executive, administrative, and judicial lawmaking.
These developments are already apparent. When legislation stalls, the
relevant agency interprets its existing authority more aggressively.49
Measures that cannot overcome a filibuster might end up in an executive
order. Similar dynamics apply to presidential appointments that require
Senate confirmation. If the confirmations process is gridlocked, the
45
Essentially, the idea of responsible party government is that the parties present the voters with
clearly contrasting programs and the party that wins the election is allowed to implement its program
and is then judged on its performance at the next election. See generally COMM. ON POL. PARTIES, AM.
POL. SCI. ASS’N, TOWARD A MORE RESPONSIBLE TWO-PARTY SYSTEM (1950); AUSTIN RANNEY, THE
DOCTRINE OF RESPONSIBLE PARTY GOVERNMENT: ITS ORIGINS AND PRESENT STATE (1954).
46
Jack M. Balkin, Parliamentary Parties in a Presidential System, BALKINIZATION (Nov. 30,
2010, 6:42 AM), http://balkin.blogspot.com/2010/11/parliamentary-parties-in-presidential.html.
47
See Peter Baker, Tide Turns, Starkly, N.Y. TIMES, Nov. 3, 2010, at A1 (reporting on
Republican leader Mitch McConnell’s statement that “the single most important thing we want to
achieve is for President Obama to be a one-term president”); Carl Hulse & Adam Nagourney, Senate
Republican Leader Finds Weapon in Party Unity, N.Y. TIMES, Mar. 17, 2010, at A13 (describing
McConnell’s strategy of holding his caucus together in order to “slow things down” and “deny
Democrats any Republican support on big legislation”); see also Jonathan Chait, The GOP’s Secret
Senate Plan, NEW REPUBLIC (Dec. 17, 2010, 6:55 AM), http://www.tnr.com/blog/jonathanchait/80139/gop-secret-senate-plan-mcconnell (speculating that McConnell secured a pledge from all
Republicans that they would vote together on procedural matters).
48
Cf. Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77
TEX. L. REV. 1705, 1708 (1999) (using the hydraulic metaphor to describe the role of money in
political campaigns).
49
See, e.g., David A. Fahrenthold & Juliet Eilperin, EPA To Pick Up Climate Change Where
Congress Left Off, WASH. POST, Aug. 4, 2010, at A3.
2011]
THE SENATE: OUT OF ORDER?
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President can circumvent the constitutionally prescribed appointments
process with more aggressive use of recess appointments50 and nonconfirmed White House czars.51 These developments hold risk for
representative government.
In sum, while complete neutrality may not be possible, it seems to me
that just about everyone should regard the current situation—a routine
supermajority rule in the Senate—as unattractive and untenable. Why,
then, does it prove so resistant to change?
III. IMPEDIMENTS TO FIXING THE SENATE
I next turn to the topic of Senate reform, in particular the obstacles that
impede it. I do not take a position here on how exactly the Senate’s rules
should be changed. The choice of a particular decision procedure is a
complicated question combining political science, political theory, and
political morality. Perhaps the best solution is simple majority rule without
filibusters, on the model of the House of Representatives. Or perhaps the
ideal solution is a suspensive veto that would let the minority delay
legislation but not block it.52 Quite possibly the rule should vary
depending on the kind of measure at issue: substantive legislation,
appropriations, judicial appointments, or executive appointments.53 My
goal here is to explain why any move toward majoritarianism is difficult.
Part of the difficulty of reforming the supermajoritarian Senate stems
from the rules for changing the rules. An amendment to the Senate’s
rules—such as a reduction in the filibuster threshold or some other
filibuster reform—is itself subject to filibuster. In fact, it is even harder to
invoke cloture on a motion to amend the rules—which requires a twothirds vote in favor—than it is to invoke cloture on ordinary legislation—
50
U.S. CONST. art II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their
next Session.”). President Obama has made a number of recess appointments; some of the appointees
had faced significant opposition, while others were delayed despite being noncontroversial. Sheryl Gay
Stolberg, Obama Bypasses Senate Process, Filling 15 Posts, N.Y. TIMES, Mar. 28, 2010, at A1; Sheryl
Gay Stolberg, Six Recess Appointments To Be Made, Obama Says, N.Y. TIMES, Dec. 30, 2010, at A18.
51
See, e.g., BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC 154–57
(2010) (explaining how filibusters, holds, and delays encourage presidents to circumvent senatorial
confirmation for top policy advisors); Brady Dennis, Warren Expected To Be Adviser, WASH. POST,
Sept. 16, 2010, at A18 (reporting that Elizabeth Warren was selected to organize the Bureau of
Consumer Financial Protection as a presidential advisor rather than appointed director in order to avoid
protracted confirmations process).
52
See generally Gerard N. Magliocca, Reforming the Filibuster, 105 NW. U. L. REV. 303 (2011)
(proposing this reform).
53
See, e.g., John O. McGinnis & Michael B. Rappaport, The Judicial Filibuster, the Median
Senator, and the Countermajoritarian Difficulty, 2005 SUP. CT. REV. 257, 261 (discussing the benefits
of filibusters of Supreme Court appointments); Bruce Ackerman, Filibuster Reform Both Parties Can
Agree On, WALL ST. J., Jan. 4, 2011, at A15 (arguing for supermajority rules for judicial appointments
but simple majorities for executive appointments).
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54
which requires a “mere” three-fifths. And the rules also provide that they
remain in force from Congress to Congress indefinitely, such that the
filibuster rule is entrenched.55 Thus, at least according to the Senate rules,
the majority cannot establish majority rule. The difficulty of amending the
rules through this process explains the occasional threatened recourse to
the “nuclear” or “constitutional” option, according to which the majority
would assert the power to set new rules free of the supermajoritarian
features of the current rules.56 Such a maneuver would be extraordinary
inasmuch as it would deviate from the Senate’s established rules and usual
practices. As I have explained at length elsewhere, I nonetheless believe
such a procedure would be lawful because the Senate’s rules cannot validly
entrench themselves in perpetuity against majoritarian change.57 Yet even
those who condemn the filibuster hesitate to eliminate it through this route.
Of course, not all Senators will agree with the legal proposition that the
rules can be validly changed by a majority, and others will believe that the
Senate was meant, as a historical matter, to operate by supermajority rules.
I believe those views are mistaken, but they surely exist. Further, some
Senators no doubt genuinely believe that the body should be
supermajoritarian in order to raise the difficulty of legislating, a reasonable
view (though again one that I, with the support of high authority,58 reject).
The deeper explanation for the absence of substantial reform, however,
is perhaps not so much legal or philosophical as political. It is a matter of
Senators’ incentives. Both sides, majority and minority, have reasons to
favor supermajority rules. The Senators in the minority have an obvious
and immediate incentive to protect minority vetoes, so that they can block
the other party’s initiatives or extract compromises or favors as the price of
their support. And the members in the majority, despite the immediate
desire to get their way, are not so shortsighted as to overlook the fact that
they will probably return to the minority sooner or later. Apart from those
party- and policy-oriented considerations that tend to impede reform,
Senators also have an individualistic interest in preserving the filibuster
because it likely increases the Senators’ power relative to other
government officials and may increase the power of rank-and-file Senators
54
STANDING RULES OF THE SENATE, supra note 4, at 15 (Rule XXII.2). The denominator for the
two cloture votes differs. For cloture on legislation, it is the whole Senate membership; for cloture on
amending the rules, it is the number of Senators present and voting. Id. Still, given the stakes of a vote
on changing the Senate’s rules, one would expect full or nearly full attendance.
55
Id. at 4 (Rule V).
56
See Martin B. Gold & Dimple Gupta, The Constitutional Option To Change Senate Rules and
Procedures: A Majoritarian Means To Overcome the Filibuster, 28 HARV. J.L. & PUB. POL’Y 205,
219–26, 232–69 (2004) (detailing a number of prior instances in which majoritarian change was
threatened or employed).
57
Bruhl, supra note 36, at 1410–18.
58
See supra notes 28–35 and accompanying text.
2011]
THE SENATE: OUT OF ORDER?
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59
relative to the Senate leadership. I imagine that when a Senator puts a
hold on several bills or nominations, legislative leaders and cabinet
secretaries suddenly become much more eager to hear about the issue that
is bothering the Senator at the moment.
As recent events illustrate, political incentives have mostly favored the
status quo. At one time it appeared that the start of the 112th Congress in
January 2011 might see major changes to the Senate’s rules. Over the
course of the previous year, the Senate had held a series of hearings on the
history, legality, and consequences of the filibuster and related practices
like holds.60 Several Senators introduced reform proposals, some of which
were quite ambitious in that they attempted to move the Senate in the
direction of majority rule.61 In December 2010, shortly before the new
Congress convened, every returning Democratic Senator signed a letter
endorsing reform.62
Yet when the actual reform package was unveiled, it was quite mild.
Most notably, it did not contemplate lowering the sixty-vote cloture
threshold. Instead, it proposed five changes to current practice.63 First, it
would eliminate filibusters on the motion to proceed, a motion that the
Senate uses to bring a matter up for debate. This reform would reduce the
number of distinct filibusters to which a particular measure could be
subjected. Second, the reform package provided that post-cloture debate—
that is, the amount of debate permitted even after cloture is invoked—
would be reduced from thirty hours to two hours for nominations (though
not for legislation). Third, the package would eliminate anonymous holds.
Holds by individual Senators would still be allowed, but the responsible
Senator would have to own up to the delay. Fourth, it would attempt to
ensure that more filibusters were actual talking filibusters. (Today, most
filibusters do not include extended debate; instead, a Senator “filibusters” a
measure merely by threatening to engage in time-consuming debate, which
is usually sufficient to persuade the majority to abandon the measure and
59
See BARBARA SINCLAIR, THE TRANSFORMATION OF THE U.S. SENATE 90, 140 (1989)
(explaining that changes in the political landscape have increased incentives to engage in filibustering
and other individualistic behavior); GREGORY J. WAWRO & ERIC SCHICKLER, FILIBUSTER:
OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE 263 (2006) (explaining that “bids to eliminate
the filibuster in the contemporary Senate run up against individual senators’ personal power goals”).
60
Examining the Filibuster: Hearings Before the S. Comm. on Rules and Administration, 111th
Cong. 111–706 (2010) (printing materials from six hearings held during 2010).
61
E.g., S. Res. 416, 111th Cong. (2010) (resolution introduced by Sen. Harkin, which would
eventually permit majority cloture after a series of cloture votes); S. Res. 396, 111th Cong. (2010)
(resolution introduced by Sen. Udall, which asserted the right to adopt new rules at the start of the next
Congress by majority vote).
62
Dan Friedman, Senate’s Returning Democrats Unanimously Favor Filibuster Reform, NAT’L J.,
Dec. 22, 2010, available at http://www.nationaljournal.com/congress/senate-s-returning-democratsunanimously-favor-filibuster-reform-20101222.
63
The remainder of this paragraph describes the proposals contained in S. Res. 10, 112th Cong.
(2011), which was introduced by Sen. Tom Udall on January 5, 2011.
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use its valuable time on other priorities.) Fifth, in order to accommodate
the minority’s complaints that it is forced to obstruct because the majority
will not allow it to offer amendments,64 the package guarantees the
minority leader the right to offer three germane amendments.
As noted, these proposed changes were modest, at least compared to
lowering the cloture threshold. Potentially the most important was the
attempt to return to a system in which filibustering Senators must actually
hold the floor. The proposal provided that filibustering Senators must
actually engage in debate and cannot ask for a quorum call or make
dilatory motions.65 If no Senator is willing to continue the debate, cloture
would be invoked notwithstanding the previous failure of a cloture vote.66
This would tend to shift a greater burden onto the filibustering Senators
and raise the costs of obstruction. Such a change could be important
because, as with most things, when the price goes up, the quantity
purchased goes down. Indeed, several political scientists have contended
that filibusters have increased so much in recent decades because the cost
of filibustering has dropped so far that the minority can almost always
outlast the majority.67 If obstruction became more taxing, the majority
would more often be able to win wars of attrition.
This reform package failed. It became apparent that support for major
reforms was weak even within the Democratic caucus, such that the most
committed reformers lacked even the fifty-one votes needed to proceed
under the constitutional or nuclear option, let alone the supermajority
required under the current rules.68 The ultimate result of all the agitation
for reform was a deal, worked out by leaders in both parties, that involved
a few relatively minor changes to the Senate’s practices.69 Pursuant to the
agreement, the Senate overwhelmingly voted to restrain the use of
anonymous holds by heightening the disclosure requirements.70 It also
voted to restrict the minority’s ability to delay through forcing the oral
reading of amendments.71 Apart from those formal resolutions, the
Democratic and Republican leaders also publicly committed to the
following: neither side would seek to use the nuclear or constitutional
64
E.g., Susan M. Collins, Congress Got Nasty. Here’s How To Fix It, WASH. POST, Oct. 10,
2010, at B4 (stating that Republicans “overuse the filibuster, because our only option is to stop a bill to
which we cannot offer amendments”).
65
S. Res. 10, 112th Cong. § 4 (2011).
66
Id.
67
See, e.g., KOGER, supra note 36, at 197–99; WAWRO & SCHICKLER, supra note 59, at 30–31,
259–64.
68
See Paul Kane, Senate Nears Approval of Filibuster Changes, WASH. POST, Jan. 26, 2011, at
A03 (describing opposition from Republicans as well as senior Democrats to more sweeping reform
proposals).
69
Carl Hulse, Senate Approves Changes Intended To Ease Gridlock, N.Y. TIMES, Jan. 28, 2011,
at A20.
70
S. Res. 28, 112th Cong. (2011) (enacted).
71
S. Res. 29, 112th Cong. (2011) (enacted).
2011]
THE SENATE: OUT OF ORDER?
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option to change the rules by majority vote in the 112th or the 113th
Congress, both parties would work together to pass legislation exempting
many lower-level executive appointments from the requirement of
senatorial confirmation, and the minority would reduce filibustering on the
motion to proceed in exchange for the majority leader’s promise to allow
the minority to offer amendments.72
It is still too early to assess the full significance of the changes that
have been implemented and promised. Nonetheless, at the most they will
amount to rather minor improvements.
IV. CONCLUSION AND PROSPECTS FOR FUTURE REFORM
The Senate’s supermajoritarian voting rules render it dysfunctional.
There is no legal impediment to change. Yet significant reform seems out
of reach, in substantial part due to Senators’ private incentives.
Is there any way to heighten the prospects of meaningful reform by
altering those incentives? Probably so, and in closing I will mention two
approaches: veiling partisanship and harnessing partisanship.
The essence of the veiling strategy is to render the immediate winners
and losers of reform uncertain.73 This could be done, for example, by
delaying the effective date of any reform for several years, so that we
would not know which party would hold the White House and the Senate
when the new rules (whatever they happen to be) came into effect. One
benefit of veiling is that it can reduce opposition that is based on
immediate partisan calculations. Another benefit, of a different type, is
that veiling can also reduce support for reform that is based on immediate
partisan calculations. This is beneficial because it lends legitimacy to
reform efforts. A related way to increase the legitimacy of Senate reform
is to do it when the stakes of reform are lower, such as when the House of
Representatives and the presidency are already divided. This is of course
the situation in the 112th Congress. In such an alignment, the filibuster is
not such an important hurdle, at least when it comes to legislation rather
than appointments.
Another route to reform is quite the opposite of veiling. It is to
positively harness the majority’s immediate partisan imperatives to enact
its agenda. One of the shortcomings of veiling is that it does not do
anything to persuade those Senators who on sober reflection sincerely
believe that the Senate should be supermajoritarian no matter who is in the
majority. Nor does pushing off reform until after the next election
72
This agreement was memorialized in a colloquy between Senators Reid and McConnell on the
Senate floor. 157 CONG. REC. S324–25 (daily ed. Jan. 27, 2011).
73
See Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 YALE L.J. 399, 399,
403–04 (2001) (describing how veiling strategies attempt to suppress self-interested decisions by
restricting information).
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diminish Senators’ individualistic incentives to retain a device that makes
them individually more powerful regardless of whether they find
themselves in the majority or the minority after the next election. But one
imagines that at some point the immediate partisan need to enact one’s
program overcomes the contrary considerations just mentioned. This is a
less desirable scenario for reform from a good-government perspective, but
it is no less efficacious. If obstruction continues to become more potent, at
some point the conditions for partisan-driven reform will materialize. The
circumstances of such reform will be a cause for regret, but the long-term
benefit of a more majoritarian Senate may be worth it if there is no
alternative.